Monday, October 3, 2011

Laying Out the Facts on Awlaki Killing

When Thomas Jefferson and his fellow revolutionaries declared the American colonies’ independence from England, they began by explaining the need to lay out their reasons, in factual detail, for such a momentous decision. “A decent respect to the opinions of mankind,” Jefferson wrote, “requires that they should declare the causes which impel them to the separation.” What was true then is true today. The United States’ national identity demands that its actions, at home and abroad, satisfy in some sense “the opinions of mankind,” both at home and abroad. So the Obama administration owes it to Americans and the rest of the world to lay out in detail its case for the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda leader, in a missile strike by a CIA-controlled drone aircraft in the Yemeni desert last week [Sept. 30]. Much is known about Awlaki (sometimes spelled “Aulaqi”), and much of the information is from the U.S. government. But some of what is “known” is only asserted. And some of the unsubstantiated assertions are critical in determining whether the killing of Awlaki satisfies what may be or should be the requirements of U.S. and international law. Awlaki was born in New Mexico in 1971 and later educated in the United States after growing up in his father’s native Yemen. He was a Muslim imam of seemingly moderate views in several cities, including the Washington, D.C., area, before adopting radical Islamist doctrines that he has espoused on the Internet for nearly a decade. He was, in no uncertain terms, someone who wished the United States ill and someone who actively encouraged others to take up jihad against the United States. In announcing Awlaki’s death, President Obama identified him as “the leader of external operations for al Qaeda in the Arabian Peninsula.” In that role, Obama said, Awlaki “took the lead in planning and directing efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009. He directed the failed attempt to blow up U.S. cargo planes in 2010. And he repeatedly called on individuals in the United States and around the globe to kill innocent men, women and children to advance a murderous agenda.” As of this writing, the evidence to back up the most specific of those charges has not been made public. Awlaki acknowledged in an interview early last year that he knew and taught Umar Farouk Abdulmutallab, the so-called “underwear bomber” in the failed 2009 aircraft bombing. But Awlaki claimed that he did not direct Abdulmutallab to carry out the attack. The British press have reported on e-mails linking Awlaki to efforts to circumvent airport security procedures in the United Kingdom. But the evidence disclosed so far appears short of proving an operational role in the foiled October 2010 plot to place bombs aboard U.S.-bound cargo planes. Awlaki was reported more than a year ago to have been placed on a list of terrorists targeted to be captured or killed. Representing Awlaki’s father, the American Civil Liberties Union filed a federal court suit in August 2010 contesting the designation or, at the least, requiring the government to justify the decision. “Both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats,” the ACLU argued. The government responded by filing a document showing the procedures used for targeted drone strikes but without any specific information about Awlaki. In December, Judge John Bates dismissed the lawsuit. Bates said that Awlaki’s father lacked standing to bring the action and that the suit in any event raised a political question ill suited for courts to decide. The ACLU’s arguments were just that: arguments. Neither U.S. nor international law can be said to have a settled position on the rules applicable to targeted killings outside an active combat zone. But in his role as the United Nations’ special rapporteur on extrajudicial, summary or arbitrary executions, the U.S. law professor Philip Alston laid out criteria in a May 2010 report comparable to those the ACLU cited. A targeted killing must be “required to protect life,” Alston wrote in the 29-page report, with “no other means, such as capture or nonlethal incapacitation, of preventing the threat to life.” In addition, a government must have reliable information and intelligence to support the targeting decision and to minimize risk to civilians. And, significantly, Alston set out detailed rules of transparency and accountability. States should lay out the claimed basis for targeted killings, the procedural rules followed and after-action procedures to monitor compliance, he said. Benjamin Wittes, the Brookings Institution scholar who has followed the war on terror for a decade, proposed somewhat similar criteria for judging targeted killings under the Constitution’s Due Process Clause. On the national security blog Lawfare, Wittes said the target must be “identified with a high degree of confidence” and pose “an unreasonable risk to human life” with “no option for capture.” Surveying the information known about Awlaki, Wittes concludes the government’s action met that test. Wittes omitted one essential requirement from Alston’s list: transparency. Many Americans, and many others around the world, have well reasoned concerns about the U.S. action. Those concerns cannot be addressed by victory statements from White House lecterns. A decent respect for the opinions of mankind demands that all the facts be laid out for Americans and the world to judge.

About Me

Kenneth Jost is author of Supreme Court Yearbook and Supreme Court From A to Z (both CQ Press) and Trending Toward #Justice. He graduated from Harvard College and Georgetown University Law Center, where he is an adjunct professor. He is a contributing writer with CQ Researcher and was a member of the CQ Researcher team that won the 2002 American Bar Association Silver Gavel Award. His articles have appeared in national and legal publications; he also appears as an analyst on national and local radio and television news programs.

The opinions expressed on the blog JostOnJustice are the opinions of the individual author and may not reflect the opinions of CQ Press or SAGE Publications, or any individual employee.

Links to external sources are provided solely as a courtesy to our blog visitors. We are not responsible for and do not endorse or warrant in any way any materials, information, goods or services available through such linked sites or any privacy or other practices of such sites.